The Theory Of The Transfer Of The Mortgaged Property

A mortgage is based on mortgages on the mortgaged property after a variety of reasons. In order to better play to the value of the mortgaged property, people may be to transfer the mortgaged property. But after the transfer of the mortgaged property, the mortgaged property owners and occupants are may change. This affects the realization of mortgage to some extent. The behavior of mortgagor transferring the mortgaged property involves the interests balance among the mortgagee, mortgagor and transferee. The reason why law regulates the transfer of the mortgaged property is in order to balance the interests of the three. Academia and practice about the transfer of the mortgaged property is quite controversial, especially the effectiveness of the contract that the mortgagor transfers the mortgaged property without the consent of the mortgagee and hypothec recourse force. This article selects "Su Qin v. Gan kangsheng business contract dispute case " that the intermediate people’s court of Guigang city judged as an example, researching the effectiveness of the contract that the mortgagor transfers the mortgaged property without the consent of the mortgagee and hypothec recourse force.This article divides four major parts:The first part introduces "Su Qin v. Gan kangsheng business contract dispute case ", including the causes, the basic facts of this case and the decision of the court of first instance and second instance court.The second part summarizes contending focus of this case, mainly including the effectiveness of the contract that the mortgagor transfers the mortgaged property without the consent of the mortgagee and hypothec recourse force.The third part analyzes the effectiveness of the contract that the mortgagor transfers the mortgaged property without the consent of the mortgagee and hypothec recourse force combining academic discussion and practical ruling. The contract should be valid, pawn of the real right change should be considering the nature of the collateral and goodwill, etc. Hypothec recourse force is recognised by the law in our country.The fourth part deliberates this case, analyze the case judgment, considers the plaintiff’s demands, thinks about the law and practice of the effectiveness of the contract that the mortgagor transfers the mortgaged property without the consent of the mortgagee and hypothec recourse force. If other laws conflict with the property law, apply to the property law. The effectiveness of the contract that the mortgagor transfers the mortgaged property without the consent of the mortgagee and hypothec recourse force should be stipulated clearly in the law. In order to avoid disputes more effectively, it is better for the mortgagor to transfer the mortgaged property with the mortgagee’s approval under the current legal environment.When the court rules the specific case of transfer of the mortgaged property, the court shouldn’t easily identify the contract is invalid. The court should follow the law and consider transaction efficiency and security to set up the trade as far as possible.